Citation Nr: 0331582
Decision Date: 11/14/03 Archive Date: 11/25/03
DOCKET NO. 01-10 008 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Des Moines,
Iowa
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen claims of entitlement to service connection for
chronic fatigue syndrome and fibromyalgia.
2. Entitlement to service connection for a chronic acquired
bowel disorder.
REPRESENTATION
Appellant represented by:
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Christopher B. Moran, Counsel
INTRODUCTION
The veteran served on active duty for training (ACTDUTRA) in
the United States Army National Guard from February 18, 1987
to July 2, 1987 and from late July 1987 to early August 1987.
The Board of Veterans' Appeals (Board) notes that the issues
on appeal arose from Department of Veterans Affairs (VA)
Regional Office (RO) rating decisions.
An historical review of the record shows that in July 1999,
the Board denied entitlement to service connection for
chronic fatigue syndrome and fibromyalgia.
FINDINGS OF FACT
1. In July 1999 the Board denied entitlement to service
connection for chronic fatigue syndrome and fibromyalgia.
2. Evidence submitted subsequent to the Board's July 1999
decision bears directly and substantially on the issues at
hand, is neither cumulative nor redundant, and is so
significant that it must be considered in order to fairly
decide the merits of the claims.
3. The competent and probative medical evidence establishes
that chronic fatigue syndrome and fibromyalgia cannot
satisfactorily be dissociated from active service.
4. The competent and probative medical evidence establishes
that a chronic bowel disorder was not present in active
service nor demonstrated currently.
CONCLUSIONS OF LAW
1. Evidence submitted since the July 1999 decision wherein
the Board denied entitlement to service connection for
chronic fatigue syndrome and fibromyalgia is new and
material, and the veteran's claim for that benefit is
reopened. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002); 38
C.F.R. §§ 3.156(a), 20.1100, 20.1105 (2002).
2. Chronic fatigue syndrome and fibromyalgia were incurred
in active service.
38 U.S.C.A. §§ 101(24), 106, 1131 (West 2002); 38 C.F.R.
§ 3.303(b)(d)(2002).
3. A chronic acquired bowel disorder was not incurred in or
aggravated in active service. 38 U.S.C.A. §§ 101(24), 106,
1131 (West 2002); 38 C.F.R. § 3.303(b)(d).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
Evidence considered by the Board in July 1999 shows;
The veteran asserted that he has fibromyalgia and chronic
fatigue syndrome due to his military service. He maintained
that he was given many immunization shots in preparation for
service in the Persian Gulf. While the veteran admitted that
he did not serve in the Persian Gulf, he claimed that he
developed fibromyalgia and chronic fatigue syndrome due to a
reaction to the immunization shots he received in service.
The veteran further asserted that he experienced symptoms of
fibromyalgia and chronic fatigue syndrome while in service
but that the medical personnel neglected to record his
complaints in his service medical records. He also claimed
that he developed a bowel disorder in service.
An October 1986 physical examination report for enlistment in
the Army National Guard was silent for any pertinent
findings. The veteran's service medical records were
negative for any pertinent diagnosis, complaint or abnormal
finding. On February 20, 1987, he was given a tetanus-
diphtheria shot and in late March 1987 he was given a
vaccination for smallpox. A report of physical examination
for National Guard purposes in October 1987 was negative for
any pertinent diagnosis, complaint or abnormal finding.
October 1989 and January 1990 records from a chiropractor,
MF, DC, indicated that the veteran injured himself at work in
October 1989. The diagnoses included fibromyalgia.
A September 1992 VA outpatient record revealed that the
veteran complained of a five-year history of fatigue and pain
in the joints. The VA examiner noted that the veteran did
not have Desert Storm Syndrome and that he might need
psychiatric follow-up.
Records from a private Chiropractic Center dated in November
1993 indicated complaints of fatigue.
The veteran complained of discomfort in the cervical region
with numbness in the upper extremities and shoulder pain
following a motor vehicle accident in early 1994.
January 1994 records from the Palmer clinic indicated that
the veteran reported injuring his back at work in 1984. The
pain had increased since that time.
A June 1995 record from the Palmer Clinic indicated that the
veteran complained of low back pain and lower neck pain. It
was noted that he had received a diagnosis of fibromyalgia.
He reported that he had chronic fatigue syndrome. The
assessment included fibromyalgia.
A February 1995 VA rheumatology outpatient report indicates
that the veteran complained of chronic fatigue and joint
pain. The diagnoses included fibromyalgia.
The veteran was examined by MFM, MD, in April 1995. He
complained of aching of a generalized nature. The diagnosis
was polyarthralgias related to fibromyalgia. Dr. MFM did not
think that he had any other significant problems.
In a May 1995 letter, Dr. MFM stated that he was unable to
state the cause of the veteran's fibromyalgia. He also
stated that he was unable to state that the fibromyalgia was
related to the veteran's service.
The veteran was afforded a VA examination in May 1997. He
reported that he had pain in the joints and was overcome by
fatigue when he was in officer candidate school. He reported
that he received a general discharge because he refused to
attend drills. He stated that his fatigability and muscle
and joint aches had increased since he was in the military.
Following physical examination of the veteran, the VA
examiner diagnosed fibromyalgia, chronic fatigue, and history
of tension headaches. The VA examiner, after examination of
the veteran and a review of the medical records in the
veteran's claims file, concluded that there was no
significant possibility that fibromyalgia or chronic fatigue
was related to military service.
The VA examiner further stated that the veteran's conditions
were not known to be caused by vaccinations or other things
that might have happened during the veteran's military
service.
The veteran submitted copies of articles which document some
of the hazards of vaccinations, including vaccinations given
to soldiers who served in the Persian Gulf.
Evidence received following the July 1999 Board decision
includes a February 2000 private medical statement from PW,
MD, showing that he had examined the veteran for the first
time. It was noted that he had a many year history of
fibromyalgia and chronic fatigue syndrome flare-ups as
diagnosed by a rheumatologist specialist and physicians at
VA.
He concurred that the veteran had chronic fatigue syndrome
and fibromyalgia symptoms on a daily basis. He opined that
it was within the realm of medical possibilities that the
veteran's symptoms may have had some casual connection with
his military service especially since the veteran reported
symptoms occurring during and immediately following service.
November 2000 reports of VA chronic fatigue and fibromyalgia
examinations undertaken by the same medical examiner shows he
reviewed the veteran's claims file.
Following a review of the record and examination findings the
medical examiner concluded that the veteran expressed some
form of chronic fatigue syndrome and fibromyalgia.
He opined that chronic fatigue syndrome and fibromyalgia were
not known to be caused by vaccinations that occurred during
the military service and that it is impossible to know
exactly what caused the veteran's symptoms to come on.
A January 2001 statement from PW, MD, notes he has been the
veteran's primary care physician for several years. It was
noted that he presented the physician with a military
vaccination certificate. It was noted that he appeared to
have had numerous vaccinations to include a contraindicated
smallpox vaccination. It was noted that the veteran believed
he had developed chronic fatigue syndrome and fibromyalgis
through misadministration of vaccinations in service. Dr.
PW, opined that it is at least as likely as not that the
chronic fatigue syndrome and fibromyalgia first diagnosed in
approximately 1989 are of service connection origin.
A February 2001 VA fibromyalgia examination report shows the
examiner reviewed the veteran's claims file. Examination
findings revealed musculoskeletal pain disorder and chronic
fatigue syndrome. The examiner noted that the diagnosis of
fibromyalgia was difficult to make and that clinically he was
unable to make such a diagnosis at that time. He noted he
could not rule out fibromyalgia. He could not make the
diagnosis at the time of the examination.
The examiner noted that the veteran is convinced that his
chronic fatigue syndrome had its onset in active service and
related to inservice vaccinations. The examiner noted that
while it is possible that idiopathic vaccination reactions
could have occurred in the veteran it was unlikely that they
would have occurred within minutes of the initial
vaccination. Rather, it was noted that the body reacts to
the foreign proteins and can develop a chronic idiopathic
reaction. The examiner opined that the veteran could have
developed these conditions while in the military.
The examiner noted that myalgia and chronic fatigue syndrome
are idiopathic disorders whose etiology is not understood.
The examiner opined that he felt it is unlikely that the
disorders are related to military service. He noted that
while the veteran could have developed these conditions in
service and by the veteran's history he did seem to develop
chronic fatigue syndrome and fibromyalgia in service, there
has not been a medical explanation for these conditions being
caused by military service. The examiner noted that being
said, that given the idiopathic nature of these conditions,
the examiner could not state with certainty that it was not
caused by his military service, just as unlikely.
The examiner noted that if he granted the fact that the
veteran developed these disabilities in service, then the
best he could state is that the veteran most likely would
have developed these conditions anyway.
In May 2001 the veteran attended a hearing before a hearing
officer at the RO. The hearing transcript is on file.
In March 2003 the veteran attended a hearing before the
undersigned Veterans Law Judge of the Board of Veterans'
Appeals sitting at the RO. The hearing transcript is on
file.
The veteran noted he was not able to practice as a
chiropractor despite being degreed in that field due to his
disabilities. He was noted to have presented proof of such
medical degree. The veteran argued that the medical evidence
with relevant opinions and numerous medical articles
concerning vaccination studies and fibromylagia constitute
new and material evidence to reopen and grant service
connection for fibromyalgia and chronic fatigue syndrome.
The voluminous postservice medical evidence fails to
demonstrate the presence of an identifiable bowel disorder
currently.
Criteria
Finality and Materiality
A claim disallowed by the Board may not be reopened on the
same factual basis. 38 U.S.C.A. § 7104(b) (West 2002);
38 C.F.R. § 20.1100 (2002).
When an appellant requests that a claim be reopened after an
appellate decision has been promulgated and submits evidence
in support thereof, a determination as to whether such
evidence is new and material must be made, and if it is, as
to whether it provides a basis for allowing the claim.
38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 20.1105 (2002).
It does not appear that the veteran appealed the Board's
December 1999 decision to the United States Court of Appeals
for Veterans Claims(CAVC). As such, the Board's July 1999
decision is final. 38 U.S.C.A. §§ 7103, 7104. However, when
a claim is the subject of a prior final denial, it may
nevertheless be reopened if new and material evidence is
presented or secured. 38 U.S.C.A. § 5108.
In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the
United States Court of Appeals for the Federal Circuit (CAFC)
noted that new evidence could be sufficient to reopen a claim
if it could contribute to a more complete picture of the
circumstances surrounding the origin of a veteran's injury or
disability, even where it would not be enough to convince the
Board to grant a claim.
New and material evidence means evidence not previously
submitted to agency decision makers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a).
Where the new and material evidence consists of a
supplemental report from the service department, received
before or after the decision becomes final, the former
decision will be reconsidered by the RO. 38 C.F.R.
§ 3.156(c).
For the purpose of establishing whether new and material
evidence has been submitted, the credibility of the evidence,
although not its weight, is to be presumed. Justus v.
Principi, 3 Vet. App. 510, 513 (1992).
In Kutscherousky v. West, 12 Vet. App. 369 (1999), the United
States Court of Appeals for Veterans Claims (CAVC) held that
the prior holdings in Justus and Evans that the evidence is
presumed to be credible was not altered by the CAFC decision
in Hodge.
The Board does not have jurisdiction to consider a previously
adjudicated claim unless new and material evidence is
presented. Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir.
1996).
In accordance with the CAVC ruling in Barnett v. Brown, 8
Vet. App. 1 (1995), the Board is obligated to address the
issue of new and material evidence regardless of whether the
RO based its determination on that issue.
If VA determines that new and material evidence has been
presented under 38 C.F.R. § 3.156(a), the case will be
decided on the merits. Williamson v. Brown, 8 Vet. App. 263
(1993).
If new and material evidence is presented or secured with
respect to a claim that has been disallowed, the Secretary
shall reopen the claim and review the former disposition of
the claim. 38 U.S.C.A. § 5108; Hickson v. West, 12 Vet.
App. 247 (1999).
The Board notes that 38 C.F.R. § 3.156 was recently amended,
and that the standard for finding new and material evidence
has changed as a result. 66 Fed. Reg. 45,620, 45,630 (August
29, 2001) (to be codified at 38 C.F.R. § 3.156(a)). However,
this change in the law is not applicable in this case because
the appellant's claim was not filed on or after August 29,
2001, the effective date of the amendment. 66 Fed. Reg.
45,620, 45,629 (August 29, 2001).
Service Connection
Service connection may be established for a disability
resulting from personal injury suffered or disease contracted
in the line of duty or for aggravation of preexisting injury
suffered or disease contracted in the line of duty. 38
U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2002).
The Board further observes that, with respect to the
veteran's service in the US Army National Guard, the
applicable laws and regulations permit service connection
only for a disability resulting from a disease or injury
incurred in or aggravated coincident with his "active duty
for training" (ACTDUTRA), or for disability resulting from an
injury during his "inactive duty training" (INACTDUTRA). See
38 U.S.C.A. § 101(22), (23), (24) (West 1991).
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated while
performing active duty for training or injury incurred or
aggravated while performing inactive duty training. 38
U.S.C.A. §§ 101(24), 106, 1131 (West 2002).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2002).
The CAVC has held that, in order to prevail on the issue of
service connection, there must be medical evidence of a (1)
current disability; (2) medical, or in certain circumstances,
lay evidence of in-service incurrence or aggravation of a
disease or injury; and (3) medical evidence of a nexus
between the claimed in-service disease or injury and the
present disease or injury. Hickson v. West, 12 Vet.
App. 247, 253 (1999).
With the showing of chronic disease in service, there is
required a combination of manifestations sufficient to
identify the disease entity and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or diagnosis including the word
"chronic." Continuity of symptomatology is required where
the condition noted during service is not in fact shown to be
chronic or where a diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b) (2002).
If a disability is not shown to be chronic during service,
service connection may nevertheless be granted when there is
continuity of symptomatology post service. 38 C.F.R. §
3.303(b) (2002). See Savage v. Gober, 10 Vet. App. 488
(1997).
When, after consideration of all the evidence and material of
record in an appropriate case before VA, there is an
approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the veteran. 38
C.F.R. §§ 3.102, 4.3 (2002).
The Secretary shall consider all information and lay and
medical evidence of record in a case before the Secretary
with respect to benefits under laws administered by the
Secretary. Where there is an approximate balance of positive
and negative evidence regarding any issue material to the
determination of a matter, the Secretary shall give the
benefit of the doubt to the claimant. 38 U.S.C.A. § 5107
(West Supp. 2002).
Analysis
Preliminary Matter: Duties to Notify & to Assist
The Board initially notes that there has been a significant
change in the law during the pendency of this appeal. On
November 9, 2000, the President signed into law the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
114 Stat. 2096 (2000). Among other things, this law
eliminates the concept of a well-grounded claim, redefines
the obligations of VA with respect to the duty to assist, and
supersedes the decision of the CAVC in Morton v. West, 12
Vet. App. 477 (1999) withdrawn sub nom. Morton v. Gober, 14
Vet. App. 174 (2000) (per curiam order), which had held that
VA cannot assist in the development of a claim that is not
well grounded.
On August 29, 2001, the final regulations implementing the
VCAA were published in the Federal Register. The portion of
these regulations pertaining to the duty to notify and the
duty to assist are also effective as of the date of the
enactment of the VCAA, November 9, 2000. 66 Fed. Reg.
45,620, 45,630-45,632 (August 29, 2001) (codified as
38 C.F.R. § 3.159).
The Board notes that 38 C.F.R. § 3.156 was recently amended,
and that the standard for finding new and material evidence
has changed as result. 66 Fed. Reg. 45,620, 45,630 (August
29, 2001) (to be codified at 38 C.F.R. § 3.156(a)). However,
this change in the law is not applicable in this case because
the appellant's claim was not filed on or after August 29,
2001, the effective date of the amendment. 66 Fed. Reg.
45,620, 45,629 (August 29, 2001).
The Board is of the opinion that the new duty to assist law
has expanded VA's duty to assist (e.g., by providing specific
provisions requiring notice of what is required to
substantiate a claim), and is therefore more favorable to the
veteran. Therefore, the amended duty to assist law applies.
In Kuzma v. Principi, No. 03-7032 (Fed. Cir. August 25,
2003), the United States Court of Appeals for the Federal
Circuit (CAFC) determined that the VCAA had no retroactive
application to claims pending on the date of the VCAA's
enactment, November 9, 2000. Accordingly, Karnas v.
Derwinski , 1 Vet. App. 308 (1991), and Holliday v. Principi,
14 Vet. App. 280 (2001) were overruled to the extent they
conflict with Supreme Court and Federal Circuit precedent.
A preliminary review of the record shows that VA has made
reasonable efforts to obtain evidence necessary to
substantiate the appellant's claim. In the case at hand, the
Board is satisfied that the duty to notify and the duty to
assist have been met to the extent necessary under the new
law.
In a June 2001 letter the RO formally notified the veteran of
the VCAA of 2000. A January 2002 supplemental statement of
the case (SSOC) shows the RO considered VCAA with respect to
the issues on appeal. He was advised of evidence he could
submit himself or to sufficiently identify evidence and if
private in nature to complete authorization or medical
releases so that VA could obtain the evidence for him. Such
notice sufficiently placed the veteran on notice of what
evidence could be obtained by whom and of his
responsibilities if he wanted such evidence to be obtained by
VA. Quartuccio v. Principi, 16 Vet. App. 183 (2002).
In light of the above, the Board finds that the duties to
notify and to assist have been satisfied. 38 U.S.C.A. § 5103
(West Supp. 2002); 66 Fed. Reg. 45,620, 45,630 (August 29,
2001) (to be codified at 38 C.F.R. § 3.159(b)).
The Board is satisfied that all relevant facts have been
adequately developed to the extent possible; no further
assistance to the veteran in developing the facts pertinent
to his claim is required with the duty to assist under both
the former law and the new VCAA. 38 U.S.C.A. § 5107(a) (West
1991); 38 U.S.C.A. §§ 5103 and 5103A (West Supp. 2002)), 66
Fed. Reg. 45,630 (Aug. 29, 2001) (38 C.F.R. § 3.159).
In sum, the RO has been afforded the opportunity to apply the
VCAA pursuant to the new implementing regulations and the
CAVC's recent interpretations of the law. There is no useful
purpose in remanding the issue decided below.
As VA has made reasonable efforts to obtain evidence
necessary to substantiate the veteran's claim, no further
assistance is required to comply with the duty to assist as
mandated under the VCAA of 2000.
New and Material Evidence
Analysis
The veteran seeks to reopen his claim of entitlement to
service connection for chronic fatigue syndrome and
fibromyalgia which the Board denied in July 1999.
When an appellant seeks to reopen a finally denied claim, the
Board must review all of the evidence submitted since that
action to determine whether the claim should be reopened and
readjudicated on a de novo basis. Glenn v. Brown, 6 Vet.
App. 523, 529 (1994).
In order to reopen a finally denied claim, there must be new
and material evidence presented since the claim was last
finally disallowed on any basis, not only since the claim was
last denied on the merits. Evans v. Brown, 9 Vet. App. 273
(1996).
Under Evans, evidence is new if not previously of record, and
not merely cumulative of evidence previously of record.
Importantly, the probative evidence obtained in connection
with the veteran's attempt to reopen his claim consists of
added pertinent medical records with opinions suggesting an
etiologic relationship between the onset of chronic fatigue
syndrome and fibromyalgia and the veteran's active military
service.
Such added evidence bears directly and substantially on the
specific issue at hand, and is neither cumulative nor
redundant; and by itself or in combination with the other
evidence, is so significant that it must be considered in
order to fairly decide the merits of the appellant's claim.
The additional evidence is both new and material as it
contributes to a more complete picture of the circumstances
surrounding the origin of the veteran's chronic fatigue
syndrome and fibromyalgia.
Accordingly, the veteran's claim of entitlement to service
connection for chronic fatigue syndrome and fibromyalgia is
reopened. 38 C.F.R. § 3.156(a)(c).
In view of the favorable decision cited below, the Board may
proceed with consideration of entitlement to service
connection for chronic fatigue syndrome and fibromyalgia on a
de novo basis. Remanding this case to the RO would serve no
useful purpose. The Board finds that the veteran is not
prejudiced by the Board entering a decision at this time.
See Bernard v. Brown, 4 Vet. App. 384 (1993).
Service Connection
Chronic Fatigue Syndrome & Fibromyalgia
Following the point at which it is determined that all
relevant evidence has been obtained, it is the Board's
principal responsibility to assess the credibility, and
therefore the probative value of proffered evidence of record
in its whole. Elkins v. Gober, 229 F. 3d 1369 (Fed. Cir.
2000); Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir.
1997); Owens v. Brown, 7 Vet. App. 429, 433 (1995) (and cases
cited therein).
The Board reiterates the basic three requirements to prevail
on a claim of entitlement to service connection. There must
be medical evidence of a current disability. The veteran has
met this requirement. He has been diagnosed with chronic
fatigue syndrome and fibromyalgia.
There must be medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury. The veteran has met the second requirement. The
veteran, a medical professional, claims that his symptoms of
chronic fatigue syndrome and fibromyalgis began in service
although not formally diagnosed until the years following
separation therefrom.
Finally, there must be medical evidence of a nexus between
the claimed in-service disease or injury and the present
disease or injury.
In this case, the Board notes that VA chronic fatigue
syndrome and fibromyalgia examination reports in November
2000 are with medical opinion and show no etiologic nexus or
link between the veteran's chronic fatigue syndrome and
fibromyalgia and any event in active military service
including vaccinations.
Importantly, a pertinent February 2001 VA examination report
with medical opinion shows that while the medical examiner
found it unlikely that chronic fatigue syndrome and
fibromyalgia were related to military service, he noted that
due to their idiopathic nature, he could not state with any
certainty that they were not caused by military service. In
other words, the likelihood or unlikelihood of service
incurrence of chronic fatigue syndrome and fibromyalgia was
evenly balanced. The examiner took cognizance of the
veteran's personal description of onset of his symptoms while
still on active duty. The examiner expressed himself in
terms of accepting the veteran's descriptions as credible.
Also, the Board recognizes that the record contains private
medical opinions from the veteran's private treating
physician suggesting the possibility that it is at least as
likely as not that chronic fatigue syndrome and fibromyalgia
began in service.
A comprehensive review of the record shows that the above
competent medical evidence provides an etiologic link between
the veteran's chronic fatigue syndrome and fibromyalgia and
his active military service. See Hickson v. West, 12 Vet.
App. 247, 253.
The relative equipoise nature of the evidence does not permit
the Board to conclude that the preponderance of the evidence
is against the veteran on the claimed issues of entitlement
to service connection for chronic fatigue syndrome and
fibromyalgia. Considerable weight has been accorded the
opinion of the VA examiner in February 2001. Also, the Board
finds that the veteran has been consistent in his
descriptions of symptomatology, and has been credible as
well.
Accordingly, the veteran's chronic fatigue syndrome and
fibromyalgia cannot satisfactorily be dissociated from his
active service. The evidentiary record supports a grant of
entitlement to service connection.
Bowel Disorder
The probative, competent medical evidence of record is
negative for any finding of a chronic bowel disorder in
active military service or currently.
Simply put, the competent and probative medical evidence of
record establishes that the veteran does not have a chronic
bowel disorder linked to service on any basis.
Although the appellant is entitled to the benefit of the
doubt where the evidence is in approximate balance, the
benefit of the doubt doctrine is inapplicable where, as here,
the preponderance of the evidence is against the claim of
entitlement to service connection for a chronic bowel
disorder. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
ORDER
The veteran, having submitted new and material evidence to
reopen a claim of entitlement to service connection for
chronic fatigue syndrome and fibromyalgia, the appeal is
granted.
Entitlement to service connection for chronic fatigue
syndrome and fibromyalgia is granted.
Entitlement to service connection for a chronic acquired
bowel disorder is denied.
____________________________________________
RONALD R. BOSCH
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.